LEFT OUT IN THE COLD: EXPLORING THE VULNERABILITIES OF SEASONAL WORKERS IN THE SKI INDUSTRY Shannon Warren* TABLE OF CONTENTS I. Introduction ................................................................................. 1 II. An Overview of the Ski Industry, Its Workers, and Their Vulnerabilities ................................................................................. 5 A. The ski industry relies on a seasonal workforce. ................... 5 B. Ski-industry employers' reliance on temporary visas for foreign seasonal workers makes both foreign and domestic workers more vulnerable. ............................................................ 7 C. The compensation and benefits seasonal ski workers receive is inadequate to protect their particular vulnerabilities. ............ 10 III. Ski-industry employers' Obligations to Seasonal Workers ..... 12 A. Generally, the law provides no additional protections for seasonal workers. ...................................................................... 13 1. The At-Will Doctrine ........................................................ 13 2. Contingent Employment and General Legal Protections for Employees ............................................................................. 14 3. Legal Protections and Vulnerabilities Particular to Seasonal Workers ................................................................................. 18 B. Unlike most seasonal workers, migrant and seasonal agricultural workers are protected under the Migrant and Seasonal Agricultural Workers Protection Act. ........................ 21 1. Legislative History & Intent ............................................. 22 C. Similar to migrant and seasonal agricultural workers, seasonal ski workers are particularly vulnerable. ..................... 24 IV. The Case for Increasing Employee Loyalty and Protection for Seasonal Ski Employees ............................................................... 26 * J.D. Candidate, University of Denver Sturm College of Law. A. Seasonal ski employees and ski-industry employers invest economically, emotionally, and psychologically in one another. ................................................................................................... 26 B. Employee loyalty is essential for ski-industry employers and internal branding is an important tool to foster loyalty. ............ 28 C. Ski-industry employers should provide clear expectations and transparency to seasonal ski employees in addition to internal branding efforts to build employee loyalty and to enhance recruitment. ............................................................................... 30 1. Guaranteed hours and terms of employment .................... 32 2. Transparency ..................................................................... 32 3. On-site Medical Visits and Preventive Treatments .......... 35 4. Cash Signing Bonuses ...................................................... 35 V. Conclusion ............................................................................... 36 LEFT OUT IN THE COLD 1 I. INTRODUCTION For many skiers and snowboarders, working for a season or two at a ski resort is a rite of passage. For Emilie and Colin Clarke, it was a dream come true.1 The couple, now married, were both ski instructors at Beaver Creek, Colorado2 during the winter of 2010 when they met during cookie time -- the magical time each afternoon, when ski lessons conclude, groups of children meet at the base of the mountain, and bakers clad in white chef's uniforms carry trays of the resort's signature freshly-baked chocolate chip cookies to delighted children and hungry ski instructors. Emilie and Colin both enjoyed their ski instructor jobs so much that they decided to stay in the Vail Valley for several years. Colin worked in hospitality and eventually got a management position at a luxury hotel in Vail, Colorado. Emilie found part-time work at a different hotel and also worked at a preschool, where she became a teacher. Stories like the Clarkes' demonstrate the idyllic side of seasonal employment in the ski industry. Emilie and Colin were young college graduates who used seasonal jobs at a ski resort to launch a new adventure. Although they worked hard to make ends meet, they now look fondly on their time working as seasonal ski employees after having moved to Denver to start a family.3 In fact, ask almost any person who spent a season working at a ski resort, and they will tell you that it was one of the happiest times of their lives.4 At the other end of the spectrum, however, are the employees in Colorado who, in the winter of 2017, waited in lines to eat at soup kitchens set up by the ski resorts, local churches, and 1 Telephone Interview with Emilie Clarke, Former Ski Instructor, Beaver Creek (Dec. 7, 2018). 2 This article discusses examples of seasonal ski workers in other mountain states such as California, Idaho, Montana, Washington, and Vermont, among others. 3 This article uses the term seasonal ski employees interchangeably with seasonal ski workers to refer to individuals who work during the winter season at a ski resort or in a ski-resort town. 4 This assertion is based on the author's interviews with people who worked in seasonal jobs at Vail, Beaver Creek, Keystone, Copper Mountain, and Winter Park ski resorts in Colorado. 2 LEFT OUT IN THE COLD local businesses because of the lack of snow in the early season.5 Ski-resort towns depend mainly upon revenue from winter tourism to run their businesses throughout the year.6 And when the snow is low as it was in the winter of 2017, lifts do not open, lessons are not booked, restaurants are not full, retail stores have fewer customers, and employers send workers home for the day without an opportunity to earn their pay.7 Although all business owners and workers in ski-resort towns are affected by the ebbs and flows of natural phenomena, seasonal ski workers are particularly vulnerable. Ski resorts in Colorado and all over the country hire thousands of seasonal workers each winter to run ski lifts, teach ski and snowboard lessons, groom trails, make snow, serve food and beverages, work in hotels and spas, and sell gear and apparel in retail stores.8 While many of these employees may be like Emilie and Colin, young college students or graduates called to the job by a love for skiing and the mountains, some of the thousands of employees hired each season to work in the ski industry are in part driven by economic necessity -- searching for opportunities to make a living in the tourism industry with little education and few skills.9 Further, many seasonal ski employees travel from other states and even other countries to work in ski-resort towns.10 When the snow is low at the beginning of the season, seasonal ski employees are hit 5 See Jason Blevins, Free Food for Colorado Workers Slows as Low Snow Slows Ski Town Business, DENVER POST, Dec. 22, 2017, https://www.denverpost.com/2017/12/16/ski-resorts-feeding-employees/. 6 See Id. 7 See Id. 8 See Part II, infra. 9 See James Brooke, Foreigners Flock to Slopes to Work, Not Ski, NEW YORK TIMES, Dec. 29, 1995, https://www.nytimes.com/1995/12/29/us/foreigners-flock-to-slopes-to-work- not-ski.html (discussing foreign workers who do the ski-resort jobs American college students do not want, such as cleaning). The demographics of seasonal ski workers is understudied, and the author was not able to find statistics regarding seasonal workers who are driven to seasonal ski jobs by economic necessity because much of the author's factual research is limited to information she learned from interviews. 10 Telephone Interview with Harrison Gully, Ski Instructor, Winter Park (Dec. 10, 2018). LEFT OUT IN THE COLD 3 the hardest. They already have paid to travel to the resort, and most are required to pay first and last month's rent up front, even though they have not yet earned a paycheck.11 Further, their wages are relatively low, especially given the high cost of living in mountain resort towns.12 Most importantly, seasonal ski workers move to the ski resort towns to work, but are not guaranteed a set amount of hours of work each week or even start and end dates for their jobs.13 Although many low-wage workers struggle to make ends meet in cities with high costs of living, seasonal ski workers are distinct from other low-wage workers and are more vulnerable for three reasons. First, they move from other cities, states, and countries to secluded mountain towns that are far from their social networks and where their employers are the main business.14 Second, they are more likely to sustain both short and long-term injury because of the dangerous nature of their work.15 Third, unlike seasonal workers in cities, they cannot find employment throughout the year in their mountain communities. Ski-industry employers also face a dilemma with respect to their seasonal employees. Each winter, they must hire thousands of employees to run their ski areas and to engage ski-resort guests.16 Because there is not a sufficient number of available workers in the communities in which ski areas are located, employers must recruit seasonal ski workers nationwide and even internationally, and cannot offer them continued employment after the winter season has concluded.17 Resorts are consistently understaffed and rely in part on guest-worker visas to obtain enough employees run their 11 See Blevins, supra note 5; see also Gully interview, supra note 10. 12 Telephone Interview with Kirk Sjolund, Former Manager, Undisclosed